El-Chamy PSM v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2023-06-05

REASONS FOR DECISION

This is an application by the Applicant seeking administrative review of a decision by the Commissioner of Police, NSW Police Force (the Commissioner) under the Firearms Act 1996 (the Act) to refuse to issue to him a Category A firearms licence (the Application).
For the reasons that follow, the correct and preferable decision is to affirm the refusal of the Applicant's firearms' licence.

Background

The Applicant is the owner of a rural property totalling 15 acres of which 10 acres is orchard and two acres are market gardens. In March 1991, he completed a Bachelor of Applied Science in Systems Agriculture.
It is not in dispute that the Applicant does not have a criminal history and had previously held a firearms licence from 4 December 1995 to 4 August 1998 under previous firearms legislation. The Applicant explains that the licence was not renewed as he changed addresses and due to an oversight, he did not renew it.
The police allege that the Applicant's eldest son, who lives with the Applicant as a condition of his bail, has an association with high-ranking members of the Hamzy Organised Criminal Network (OCN) (or sometimes described in the materials as the "Hamze" OCN).
The Applicant denies any "association" to high-ranking members of an OCN but accepts that his wife is married to a member of the Hamzy family and that his sons are friends with Mr Tarek Hamzy and Mr Haissam Hamzy (who were his sons' co-accused in the charges brought against them because of the alleged events of 18 September 2021 (as described below)). Mr Tarek Hamzy and Mr Haissam Hamzy lived with the Applicant's sister and brother-in-law on the adjoining property and grew up with his sons. The Applicant rejects that his family is linked to criminal activity.

Events preceding and following the Applicant's firearms application

In 2021, the Hamzy OCN and the Alameddine OCN had been involved in conflict that had resulted in escalating violent confrontations. Those confrontations included public place shootings and murders of several high ranking OCN members on both sides of the conflict.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
On 21 June 2021, the Applicant completed the NSW Firearms (Longarms) Licence Qualification course through the St Ives Pistol Club.
[NOT FOR PUBLICATION]
According to the Applicant, the Applicant decided to complete this course in order to apply for a firearms licence so as to control rabbits that were a pest on his rural property.
On 18 September 2021, a person associated with the Alameddine OCN was abducted, robbed and stabbed. The Applicant's sons were arrested and charged.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
On 25 January 2022, the Applicant's two sons were charged in relation to the kidnaping and assault of an associate of the Alameddine OCN that occurred on 18 September 2021. Bail was refused as at that time.
On 27 January 2022, the firearms registered in the Applicant's eldest son's name were seized.
On 29 January 2022, the Applicant's eldest son was subsequently issued a Firearms Prohibition Order (FPO) at Silverwater Correctional Complex.
On 19 March 2022, the Applicant's application for a firearms licence was refused. The basis was the timing of the application given the FPO with the inference drawn that the Applicant's eldest son has a level of influence over the Applicant's decision to apply for a firearms licence.
On 1 April 2022, the Applicant applied for an internal review.
On 4 December 2022, the decision to refuse the licence application was affirmed in Internal Review. While the decision stated that there did not appear to be any basis to draw the inference that the Applicant's son had a level of influence over the Applicant's decision to apply for a firearms licence the decision was affirmed because: 1. The representation made by the Applicant that his property was 15 acres of which 10 acres was an orchard and two acres were market gardens was false and misleading. 2. It was unclear as to whether the Applicant's son retains physical capability to access the safe. 3. The Applicant's sons alleged conduct is relevant. Additionally, the Applicant's son bail conditions dictate that he must reside at the Applicant's address and the effect of the FPO is to prohibit the possession and use of firearms at the Applicant's residence whilst the Applicant's son resides there.
The Applicant's sons were subsequently granted bail. The Applicant's eldest son's bail conditions included that he remain at the Applicant's residence and nowhere else. This bail condition came into force on 28 October 2022.
On 20 December 2022, Police officers searched the Applicant's property pursuant to the FPO served on the Applicant's eldest son and located the following items: 1. Cannabis; 2. Four vials labelled Trenbolone; 3. One vial labelled Enanthate; and 4. Multiple packets of a prescribed, but restricted substance, Suboxone.
According to the Event Report, within the same room that the cannabis was found, there was a gun safe and, as stated in the report: "police found a key to the safe within the same room"
Within the gun safe, police found: 1. Four vials labelled Trenbolone and one vial labelled Enanthate both of which being a type of testosterone/ steroid; 2. Multiple packets of a prescribed, but restricted substance, Suboxone.
Police cautioned the Applicant and asked him about his knowledge of the drugs found in the gun safe. The Applicant denied the drugs belonged to him and informed the Police that the shed was used by "the boys" being a reference to his sons and their friends. That shed, being where the gun safe was located.
The Police continued their search but did not find any firearms or ammunition.
According to the Event Report: "… Police are unable to prosecute the [Applicant's son] or any other person for the located drugs within the premise due to there being no evidence to suggest that its owner [was] a specific person or that the [Applicant's son] had knowledge of the drugs. The [Applicant's son] stated that the particular room is used by many people including visitors."
On 14 February 2023, the Applicant then lodged his Review Application with the Tribunal.

Legislation

The Act establishes a legislative framework regulating the possession, use, acquisition, and supply of firearms. Relevant to this application is: 1. Section 11(3)(a) that provides that "A licence must not be issued unless the Commissioner is satisfied that the Applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace" 2. Section 11(4)(a) of the Firearms Act provides that the Commissioner (and on review this tribunal) must not issue a licence to a person "if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's way of living or domestic circumstances". 3. Section 11(7) of the Act relevantly provides that "the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest."
Section 3(1) of the Act provides guidance as to how the Act is to be administered and the context of the Commissioner's power to revoke a licence. Section 3 declares that firearms possession and use is "conditional on the overriding need to ensure public safety". Objects of the Act include to: 1. provide strict requirements that must be satisfied in relation to licensing of firearms; and 2. require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm. See also s 12 of the Act.
It is in this context that the Commissioner's power to refuse to issue a licence must be applied and to determine whether considerations of public interest or concern for public safety justify the refusal.
Accordingly, the issues in this application are thus whether: 1. the Applicant is a fit and proper person; 2. there is reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of his domestic circumstances, namely his relationship with his son, 3. it would be contrary to the public interest for a licence to be issued to the applicant.
The latter power is discretionary. However, it is necessary to adopt a balanced view of any identifiable risk bearing in mind all relevant circumstances: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32] (Webb)
The Tribunal has jurisdiction to hear and determine this application by reason of s75(1)(c) of the Act and s9(1) of the ADR Act. Pursuant to s63 of the ADR Act, the Tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one.
The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: Civil and Administrative Tribunal Act 2013, s 38(2) (CAT Act).

Evidence

On 3 May 2023, non-disclosure orders were made with respect to certain confidential material relied upon by the Commissioner. To maintain that confidentiality, orders were made that the final hearing of the Application be conducted partly "open" (i.e being open to the public) and partly "closed" (i.e that part of the hearing be conducted in the absence of the Applicant, his legal representative, and members of the public).
With respect to the "open" part of the final hearing - in addition to the oral submissions made on behalf of both parties and the material lodged by the Commissioner pursuant to s58(1) of the ADR Act marked "R4", the Commissioner relies upon: 1. Written submissions filed 24 May 2024 marked "R1"; 2. A USB containing body worn footage of the police marked "R2"; and 3. Statement of Detective Sergeant Graeme Napier marked "R3".
In respect of the "closed" part of the hearing, the Commissioner relies upon: 1. [NOT FOR PUBLICATION]
The Applicant relies on: 1. Written Submissions dated 31 March 2022 marked "A1"; 2. Statutory declaration dated 1 April 2022 marked "A2" attaching: 1. Certificate of completion of NSW Firearms (Longarms) Licence Qualification Course dated 21 June 2021; 2. Photograph taken on 31 March 2022 of about 60 small pots of parsley plants that the Applicant had planted to see at the Farmers' Markets which were destroyed by a rabbit attach the day before and rendered unsaleable; 3. Photograph of the Applicant on his rural property; 4. Photograph of the Applicant's public service medal certificate and citation; 5. Photograph of the Applicant's bachelor of applied science degree; and 6. Photograph of the heavy combination safe in which the Applicant proposes to keep the key to the approved firearms cabinet. 1. Applicant's written response undated but filed 15 May 2023 and marked "A3"

Submissions

In making the case that the Commissioner's decision is correct and preferable, the Commissioner contended that: 1. The Applicant is not a fit and proper person because of his current domestic situation and specifically: 1. The Applicant's eldest son resides with him and must do so as a condition of his bail, is cause for serious concern because: 1. The Applicant's eldest son's has alleged links with the Hamzy OCN and because of his criminal history; and 2. The Applicant appears to have little knowledge of the individuals who attend, the substances brought onto his property and the activities that take place there including the storage of drugs. 1. Given that the Applicant's eldest son resides with him, there is a real and appreciable risk that his son could have access to the firearms stored on the premises and as such, the Tribunal cannot be satisfied that the Applicant would maintain continuous control over the firearms. The Applicant simultaneously contends that because of the FPO against the Applicant's son, it would be manifestly against the public interest to grant the application in case. 2. Additionally, or in the alternate, that it is not in the public interest pursuant to s 11(7) of the Act.
Conversely, the Applicant submitted that there was no basis to find that he was unfit or improper or that a licence would not be in the public interest because: 1. His son does not have a level of influence over him; 2. He has a practical need for a firearm on his agricultural property; and 3. He is of high character as supported by: 1. the absence of any criminal convictions; 2. his public service medal which is a matter of public record, 3. the fact he is a Justice of the Peace and has been since 1991; 4. a former Senior Executive of the NSW Government having served over 29 years as a public servant and held the position of Executive Director for Crown Lands

Fit and Proper

The Act places an emphasis on the need for licensees being fit and proper for the role. The Tribunal has considered the issue of whether an Applicant is a fit and proper person to hold a licence under the Act on numerous occasions.
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].
In the context of the Act, fitness and propriety "must be considered in the context of at all times ensuring public safety": Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254, [22].
The question of a person's fitness to hold a licence is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake. In the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
They went on to say at 388: "The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration."
In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, Walters J said: "In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails."
In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court discussed the meaning of the term 'fit and proper' (at 156-7): "The expression fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. Fit' (or `idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."
In applying these authorities in consideration of the evidence before the Tribunal, I am not satisfied that the Applicant is not a "fit and proper person" as provided in s 11(3)(a) of the Act.
[NOT FOR PUBLICATION]
Otherwise, the evidence relied upon by the Commissioner pertains to the alleged character, conduct and associations of his eldest son - and not the Applicant. The Commissioner justifies this approach by relying upon Tolley v Commissioner of Police [2006] NSWADT 149 at [31] (Tolley) where Judicial Member Fitzgerald stated as follows: "Given the breadth of the Commissioner's discretion and the overriding object of public safety there is no basis for differentiating between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence.
Tolley was a decision considering the ambit of the public interest in the context of firearms' licencing and specifically whether issuing the applicant in that case with a firearms licence would create a risk to public safety given his domestic circumstances. I deal with the Commissioner's submissions in respect of the Applicant's domestic circumstances, below.
The evidence relied upon by the Commissioner is insufficient to satisfy me that the Applicant is not fit and proper. Even if that was not the case, the Applicant has put before this Tribunal positive evidence going to his character and reputation. That evidence is listed at paragraph 45(3) above including his public service medal and his long history as a public servant of this State.
In these circumstances, I find that the evidence is insufficient to conclude that the Applicant is not a fit and proper person and I reject the Commissioner's contentions in this respect.

Domestic circumstances

In LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at [41]- [43], the Tribunal held that the Commissioner, and hence the Tribunal on review, must objectively be satisfied, from established facts, of the matters set out in s 11(4)(a) of the Act, that is, whether the Applicant's domestic circumstances are such that he may not personally exercise continuous and responsible control over his firearms. See also Meggit v Commissioner of Police [2022] NSWCATAD 353, at [27].
In Tolley at [31] the Tribunal observed that given the breadth of the discretion and the overriding object of public safety, there is no basis for differentiating between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence. Consequently, the conduct of the Applicant's son is a relevant factor in determining whether the Applicant may personally exercise continuous and responsible control over firearms: see also Emery v Commissioner of Police [2022] NSWCATAD 122.
The Tribunal has held that even when there is no evidence that an Applicant has personally engaged in criminal activities, he or she could come under pressure to make guns or ammunition available to criminals or criminal organisations if they remain associated with such persons or organisations: Adams v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 194, at [90]; see also El Saadi v Commissioner of Police (No 2) [2021] NSWCATAD 336. In Mekhitarian v Commissioner of Police [2021] NSWCATAD 309.
In Tolley, the applicant's son had been charged with supplying commercial quantities of drugs and other offences and was in custody awaiting sentence. The Police concern in that matter was that the son may put pressure on his father to access his firearms.
Similarly, and more recently, in Ryan v Commissioner of Police [2021] NSWCATAD 23 (Ryan) the applicant's partner of 8 years had been the subject of a number of Police reports concerning drugs, break and enter, aggravated robbery, assault, consorting, stalk/intimidation, and at the time the applicant's firearms licence was revoked, was subject to a Community Correction Order. In the decision, it was found that there was reasonable cause to believe that the applicant's partner may take advantage of their domestic circumstances and therefore the applicant may not personally exercise continuous and responsible control over her firearm. These matters involved a criminal history of the applicants' son/partner, and in both Tolley and Ryan the concern was the potential pressure that might be applied to the applicant in relation to access to firearms.
Accordingly, the conduct of the Applicant's son history of being charged with kidnapping and assault, as well as other incidents where he has come to the adverse attention of the police, is of direct concern to the issuing of a firearms licence. The conclusion of this Tribunal as to that concern is consistent with the issuing of an FPO as against the Applicant's son.
[NOT FOR PUBLICATION]
Given the conduct the subject of the charges against the Applicant's son, there is a risk to public safety by the existence of the firearms on premises where the Applicant's son and his associates may be aware firearms are present.
These findings are sufficient to affirm the decision to refuse the Applicant a firearms licence, however, I also note the following which supports this conclusion which relate to the Applicant's plans to store future firearms.
With respect to the Applicant's plans related to storage, his evidence was not entirely clear. The Applicant relied upon a photograph of a safe which he described as: "A photograph of the heavy combination safe in which [the Applicant] proposes to keep the keys to the approved firearms cabinets"
The document describing the safe to store the keys to the firearms safe is dated 31 March 2022. It was repeated in a statutory declaration of the Applicant made on 1 April 2022. However, both documents were filed with this Tribunal as part of the Applicant's evidence and submissions in support of this application on 15 May 2023. In addition, the document marked "A3" was also filed by the Applicant on 15 May 2023 (but is undated) states: "Should I be granted a firearms licence, I will ensure that no one has access to the safe and will put measures in place to prevent access by any other person."
Conspicuous in its absence is any explanation from the Applicant as at 15 May 2023, when these documents were filed, as to arrangements that have been made to store firearms at a place other than his residence given the terms of the FPO issued against his son.
Rather, the inference to be drawn from this evidence is that while the Applicant intends to keep the key to the firearms safe in a separate safe, the intention was to store them at his residence by utilising the firearms safe located in the shed.
This raises two issues: First, this would be an offence given the FPO issued against his son that prohibits the Applicant's son from residing at a residence where a firearm or ammunition is kept.
Secondly, even if the FPO was withdrawn, there is evidence of the Applicant's son's control of the residence in which both the Applicant and the Applicant's son reside and, significantly, to the shed in which the firearms safe is located to the exclusion of the Applicant. Additionally, there is evidence that other, unnamed individuals who are identified only as the "boys" also have control over that shed at least to the extent that they have been given access to the firearms safe or taken it without the Applicant's or the Applicant's son's knowledge.
In this respect, I refer to the events of 20 December 2022 as described above. As therein described, the Police were unable to prosecute the Applicant's son or the Applicant because on the one hand, the Applicant disavowed knowledge of the drugs because he disavowed knowledge of what occurred in the shed where the drugs were found. Likewise, the Applicant's son told the police that many people used the shed including visitors. However, of concern is that the drugs were found in the firearms safe. What follows from this is that: 1. The Applicant's son had not ensured that the key to the gun safe was kept safe but rather it was kept in the shed with the gun safe and could be located as it was by the Police during the search. 2. The Applicant's son was aware that "visitors" could access the gun safe either with his knowledge or without his knowledge. 3. The Applicant's son allowed "visitors" to access the gun safe or did not take action to ensure that any "visitors" could not access the gun safe.
Put another way, if the Applicant's son had informed the Police that there was no way that any individual could access the gun safe except for himself, the contents of the gun safe including the drugs must have belonged to him. In denying this, the above conclusions must be drawn.
Irrespective of the fact that there were no guns in the gun safe at that time, this conduct sits uneasily with the Applicant's contention the if licensed to possess and store firearms at his residence, there is no possibility that his sons (or these "visitors") could access them.
For the above reasons, including my observations in relation to the confidential material, I am satisfied that the Applicant's domestic circumstances are such that he may not personally exercise continuous and responsible control over firearms. Accordingly, I affirm the decision to refuse the Applicant a firearm.

Public interest

The 'public interest' allows a consideration of issues going beyond the character of the Applicant. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16 (Constantin).
The Tribunal has also considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence: "25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal."
"Public interest' embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to 'the public interest' is 'to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at 681 (Comalco). The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.
The Applicant's evidence is that he seeks a firearms licence as a primary producer so as to deal with vermin on his property that are negatively impacting his operations. I find that his reason for a firearm is genuine. However, private interests such are not the only matters taken into account; the interests of the whole community are matters for consideration: Comalco at 681. As the Tribunal has observed many times, these matters include public protection, public safety and public confidence in the administration of the licensing system: Constantin at [33].
I accept that in the period the Applicant previously held a firearms licence he had not come to the attention of the Commissioner in relation to failure to comply with his firearms statutory obligations, nor was there evidence of any misuse of his firearms. Nor does the Applicant have a criminal record. However, in Webb at [32], Montgomery JM when considering the question of public safety, stated that that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances and that only real and appreciable risk needs to be taken into account. It is clear that the overriding concern of the public interest in this context is the maintenance of public safety. Any real and appreciable risk to public safety cannot be outweighed by the Applicant's interest in holding a firearms licence.
In this case, for the reasons provided above with respect to the Applicant's domestic circumstances, I am satisfied that a real and appreciable risk to public safety has been established. In this respect, where an applicant associates with a person or persons who have significant criminal histories, that association may create a danger to public safety: Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43 and Dalziell v Commissioner of Police, NSW Police Force [2018] NSWCATAD 79. Further, the Tribunal has no basis to conclude that the Applicant's association with his son will because of his bail conditions.
The information, including that provided in the confidential material, is sufficient, in my view, to establish a real and appreciable risk to public safety. Consequently, I find that, at this time, it is not in the public interest for the Applicant to hold a firearms licence.

Decision

The decision to refuse the Applicant's firearms licence is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 September 2023

At a glance

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Judgment (10 paragraphs)

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Cases Cited (14)

Cited By (3)